Citation NR: 9732761
Decision Date: 09/25/97 Archive Date: 10/01/97
DOCKET NO. 97-03 151 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to restoration of a compensable rating for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1990 to
October 1991.
This matter comes before the Board of Veterans’ Appeals
(Board) from an August 1996 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that her bilateral hearing loss has not
improved, thereby arguing that the previously assigned 10
percent rating should be restored.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that restoration of a 10 percent
rating for bilateral hearing loss is not warranted.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the issue decided herein has been obtained.
2. The evidence of record at the time of the August 1996
rating decision reducing the evaluation for the veteran’s
bilateral hearing loss to noncompensably disabling is at
least as complete and full as that upon which the 10 percent
evaluation was based; it demonstrates sustained improvement
in the veteran’s disability that is reasonably likely to
continue under the ordinary conditions of life.
CONCLUSION OF LAW
The criteria for restoration of a 10 percent rating for
bilateral hearing loss have not been met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. §§ 3.105(e), 3.344(a), (c), 4.85,
Diagnostic Code 6100 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the veteran’s claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West
1991), in that it is plausible. Further, the Board is
satisfied that all relevant facts have been properly
developed and that no further assistance to the veteran is
required to comply with 38 U.S.C.A. § 5107(a).
In accordance with 38 C.F.R. § 4.1 and § 4.2 (1996) and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has
reviewed all evidence of record pertaining to the history of
the veteran’s service-connected bilateral hearing loss.
Review of this history discloses that the veteran served in
the U.S. Army Reserve beginning in 1974, and that, prior to
active service in December 1990, she manifested some
bilateral hearing loss. She was nevertheless accepted for
active duty.
During service, the veteran underwent several audiological
evaluations based on complaints of decreased auditory acuity.
However, audiometry testing yielded highly inconsistent
results. Average pure tone thresholds, in decibels, for the
right ear ranged from 20 to 51, and for the left ear ranged
from 25 to 63. Where speech audiometry results were
reported, the reliability of such results were consistently
described as either poor or very poor. The final evaluation
afforded the veteran during service, in September 1991,
yielded the following pure tone thresholds:
HERTZ
500
1000
2000
3000
4000
RIGHT
40
35
25
35
45
LEFT
50
55
45
50
50
Speech audiometry revealed speech recognition ability of 92
percent in the right ear and of 84 percent in the left ear.
The veteran filed a VA compensation claim immediately after
separation from service. She was afforded a VA audiology
examination in February 1992, which disclosed pure tone
thresholds, in decibels, to be as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
40
40
35
40
40
LEFT
45
45
40
45
45
The average pure tone decibel loss in the right ear was 39
and in the left ear was 44. Speech audiometry revealed
speech recognition ability of 68 percent in the right ear and
of 72 in the left ear. The examiner described the hearing
loss in the veteran’s right ear as mild to moderately severe,
with poor speech discrimination, and in the left ear as mild
to moderate, with fair speech discrimination.
Following review of the aforementioned evidence, the Board,
in January 1994, granted the veteran service connection for
bilateral hearing loss, finding that her auditory acuity had
deteriorated further as a result of service. In February
1994, the RO assigned the veteran’s disability a 10 percent
evaluation, effective October 1991, based on the results of
the February 1992 VA examination, which showed that the
veteran manifested Level IV hearing bilaterally under
38 C.F.R. § 4.85.
The veteran subsequently filed a claim for an increased
rating for her bilateral hearing disability in June 1994.
The resultant November 1994 VA audiological examination
demonstrated the following pure tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
35
35
30
35
40
LEFT
55
55
50
55
50
The average pure tone decibel loss in the right ear was 46
and in the left ear was 53. Speech audiometry revealed
speech recognition ability of 92 percent in the right ear and
of 88 percent in the left ear. The examiner described the
hearing loss in the veteran’s right ear as mild to severe,
with excellent speech discrimination, and in the left ear as
moderately severe, with good speech discrimination. The
average pure tone decibel losses noted above corresponded to
Level I hearing in the right ear, and Level II hearing in the
left ear, which in turn corresponded to a noncompensable
evaluation. The RO denied the veteran’s claim for an
increased rating, but indicated that a VA examination would
be scheduled in the future to assess whether the veteran’s
disability had stabilized at a noncompensable level.
In connection with its review of the veteran’s disability,
the RO obtained VA outpatient treatment records for the
period covering January 1995 to June 1996. These clinical
records demonstrate evaluation of the veteran’s bilateral
hearing loss as mild to severe in her right ear, and moderate
to moderately severe in her left ear. Significantly, the
more recent outpatient treatment reports indicated that the
veteran’s hearing loss disability was essentially unchanged
in severity since the results of the November 1995 VA
examination, discussed below.
The RO scheduled the veteran for a review examination of her
hearing in November 1995. At that examination, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
40
35
35
40
LEFT
60
60
50
55
55
The average pure tone decibel loss in the right ear was 38
and in the left ear was 55. Speech audiometry revealed
speech recognition ability of 92 percent in the right ear and
of 80 percent in the left ear. The examiner described the
hearing loss in the veteran’s right ear as mild to moderately
severe, with excellent speech discrimination, and in the left
ear as moderately severe, with good speech discrimination.
Using the tables located at 38 C.F.R. § 4.85, the results of
the examination indicate that the veteran manifested Level I
disability in her right ear, and Level IV disability in her
left ear, corresponding to a noncompensable rating.
Based on the VA examinations of record, as well as the
outpatient treatment records, the RO proposed to reduce the
veteran’s rating to 0 percent disabling by letter dated in
February 1996. She was afforded a period of 60 days to
submit evidence that her disability remained 10 percent
disabling.
The RO subsequently afforded the veteran an examination in
April 1996. At this examination, pure tone thresholds, in
decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
45
40
35
40
40
LEFT
65
60
55
55
55
The average pure tone decibel loss in the right ear was 49
and in the left ear was 56. Speech audiometry revealed
speech recognition ability of 92 percent in the right ear and
of 78 percent in the left ear. The examiner described the
hearing loss in the veteran’s right ear as mild to moderate,
with good speech discrimination, and in the left ear as
moderate to moderately severe, with fair speech
discrimination. Using the tables located at 38 C.F.R.
§ 4.85, the results of the examination indicate that the
veteran manifested Level I disability in her right ear, and
Level IV disability in her left ear, corresponding to a
noncompensable rating.
The veteran was afforded a hearing before a hearing officer
at the RO in August 1996, at which time she indicated that
her hearing acuity would increase and decrease at various
points during the day, but that it is still as disabling as
when she was initially assigned a 10 percent rating. The
veteran also testified that she now does well on the speech
recognition portion of the audiological evaluations because
she is too familiar with the words used.
Based upon the November 1995 and April 1996 VA examinations,
as well as the outpatient treatment reports, the RO entered
its August 1996 rating decision reducing the evaluation for
the veteran’s bilateral hearing loss to 0 percent, effective
December 1, 1996.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1996). The Board
attempts to determine the extent to which the veteran’s
service-connected disability adversely affects her ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1996). The
standards for rating impairment of auditory acuity are set
forth at 38 C.F.R. § 4.85. The Board observes that in
evaluating service-connected hearing impairment, disability
ratings are derived by a mechanical application of the rating
schedule to the numeric designations assigned after
audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet.App. 345 (1992).
The record reflects that the RO has complied with the due
process requirements of 38 C.F.R. § 3.105(e) in its reduction
of the evaluation to noncompensable. With respect to whether
the evidential requirements for reducing the evaluation have
been met, the Board notes that 38 C.F.R. § 3.344 regarding
stabilization of disability ratings is for application, since
the 10 percent evaluation had been in effect for a period in
excess of five years. The 10 percent evaluation was in
effect from October 1991 until the reduction effective in
December 1996. See Brown v. Brown, 5 Vet.App. 413, 418
(1993) (duration of rating measured from effective date of
actual reduction). According to 38 C.F.R. § 3.344(a), those
examinations that are less complete than those on which
payments were authorized or continued may not serve as a
basis to reduce an evaluation. The regulation further
provides that ratings as a result of diseases subject to
temporary and episodic improvement may not be reduced on any
one examination, except in those instances where all the
evidence of record warrants the conclusion that sustained
improvement has been demonstrated, and that with a showing of
material improvement, the rating agency must consider whether
the evidence makes it reasonably certain that the improvement
will be maintained under the ordinary conditions of life.
Id.
The Board finds that the evidence of record received since
the February 1994 rating decision granting the veteran a 10
percent rating for bilateral hearing loss warrants a
reduction of the evaluation assigned to the disability. The
10 percent schedular evaluation assigned on the basis of
impaired auditory acuity in February 1994, effective from
October 1991, was based on audiometric data compiled by VA in
February 1992. The identification of level IV hearing of
both ears at that time was significantly affected by low
scores for speech recognition. The scores of 68 and 72
percent for the right and left ears, respectively, appear to
have been an aberration, inasmuch as all subsequent testing,
including that performed in 1994, 1995 and 1996, as well as
near service separation in September 1991, were consistently
much higher and ranged from 78 to 92 percent. While the
level of decibel losses on air conduction testing during that
time frame increased over that demonstrated on the February
1992 examination, the deterioration was not to a
significantly greater degree than the improvement manifested
by the speech recognition scores, and in any event was
productive of no greater auditory impairment than as
reflected by level I hearing in the right ear and level IV
hearing in the left ear; as noted previously, these scores
correspond to a noncompensable rating.
Despite the veteran’s unsubstantiated allegations as to a
lack of improvement regarding the disorder in question,
material improvement in the veteran’s auditory acuity is
amply demonstrated subsequent to February 1992. 38 C.F.R.
§ 3.344. The Board acknowledges that the veteran’s
representative has challenged the accuracy of the November
1995 and April 1996 VA examinations. However, in light of
the veteran’s previous auditory examinations, which have been
productive of widely varying results, the Board finds that
the relative consistency of results provided by the more
recent examinations militates against the suggestion of
inaccuracy, and the veteran’s representative has not
otherwise offered any rationale for the allegation of
inaccuracy. The examinations utilized by the RO to effect
the reduction were at least as complete as the evaluation on
which the original assignment of the 10 percent rating was
based and outpatient treatment reports essentially indicate
that the veteran’s disability remains at that level
characterized by the November 1995 VA examination. Further,
the Board points out that the 10 percent evaluation
previously assigned was based solely on the results of one
examination, whereas the rating reduction at issue was based
on several subsequent VA examinations consistently
demonstrating a level of disability which is noncompensable.
Moreover, the veteran’s bilateral hearing loss is not shown
to be one of those diseases subject to episodic improvement
or one that becomes comparatively symptom free after
prolonged rest. 38 C.F.R. § 3.344(a). Due to the number of
years over which the veteran’s disability has been shown, on
audiological testing, to be noncompensably disabling, it is
also concluded that the material improvement demonstrated
will be maintained under the ordinary conditions of life. No
other basis is shown so as to warrant restoration of the 10
percent rating for bilateral hearing loss.
ORDER
Restoration of a 10 percent rating for bilateral hearing loss
is denied.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after (CONTINUED ON NEXT PAGE)
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
which appears on the face of this decision constitutes the
date of mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal by
the Board of Veterans' Appeals.
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